REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV 2015- 03107 IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT, CHAP. 2:01 AND IN THE MATTER OF A PARLIAMENTARY ELECTION PETITION FOR THE CONSTITUENCY OF ST. JOSEPH HELD ON THE 7TH DAY OF SEPTEMBER, 2015 AND IN THE MATTER OF THE ELECTION PROCEEDINGS RULES, 2001 BETWEEN VASANT VIVEKANAND BHARATH Petitioner AND TERRENCE DEYALSINGH First Respondent AND THE RETURNING OFFICER FOR THE CONSTITUENCY OF ST. JOSEPH (DEEMED TO BE A RESPONDENT BY VIRTUE OF SEC. 107(2) OF THE REPRESENTATION OF THE PEOPLE ACT) Second Respondent BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER APPEARANCES Mr. T. Straker Q.C., Mrs. K. Persad-Bissessar S.S., Mr. A. Ramlogan S.C., Mr. K. Samlal, Ms. J. Lutchmedial, Mr. D. Bailey, Mr. G. Ramdeen appeared on behalf of the Petitioners Mr. D. Mendes S.C., Mr. J. Jeremie S.C., Mr. R. Nanga, Mr. K. Garcia, Mr. M. Quamina, Ms. Gopaul, Mr. S. De la Bastide, Ms. C. Jules, instructed by Ms. E. Araujo appeared on behalf of the First Respondents Mr. R. Martineau S.C., Mrs. D. Peake S.C., Mr. R. Heffes-Doon, instructed by Ms. A. Bissessar appeared on behalf of the Second Respondents JUDGMENT TABLE OF CONTENTS Heading Page 1. Introduction 1 of 53 2. Procedural History 3 of 53 3. Facts 6 of 53 4. Submissions 12 of 53 5. Summary of Submissions for the Petitioner 12 of 53 6. Submissions for the First Respondent 15 of 53 7. Submissions for the Second Respondent 17 of 53 8. Submissions in Reply 21 of 53 9. Issues 22 of 53 10. Law and Discussion 24 of 53 - Widespread Corrupt Practices 24 of 53 - Whether there was any Breach of Official Duties 27 of 53 - Whiteman 32 of 53 - The Blizzard Cases 35 of 53 - Consequence of Breach 38 of 53 - Substantial Compliance 42 of 53 - Statutory bases for Invalidity 48 of 53 11. Epilogue 52 of 53 STATUTORY PROVISIONS 1. Schedule A – List of Affidavits filed by all Parties i 2. Schedule B – Statute vi 3. Schedule C – Authorities relied on by all Parties xxvii Introduction 1. The Republic of Trinidad and Tobago is a Sovereign democratic State1, in which the Constitution is the supreme law2 and Parliament holds the legislative power for the peace, order and good government for the people of Trinidad and Tobago3. Government derives its legitimacy by the consent and will of the majority of the electorate4. Constitutionally, members of the House of Representatives are elected at least every five (5) years by secret ballot and the result of the election is determined by a count of the votes on the basis of first past the post5. 2. The process of elections to the House of Representative is set out in minute detail in the Representation of the People Act (ROPA), Chapter 2:01 6 and is subject to the direction and supervision of the Elections and Boundaries Commission (EBC) which is a statutory body, created by Section 71(1) of the Constitution7 and is independent of the direction or control of any person or authority. 3. It was in this constitutional context that the people of the Republic of Trinidad and Tobago went to the polls on the 7th September, 2015 to elect members of the House of Representatives and ultimately a new government. 4. On the day of the polls, the EBC issued a directive that the voting should be extended by one (1) hour because of inclement weather. 1See Section 1, The Constitution, Ch. 1:01 2 See Section 3, The Constitution, Ch. 1:01 3 Section 53 of the Constitution, Ch. 1:01 4See the Judgment of Jamadar, JA on the Leave Appeal in CA No. S 229-240/2015 Wayne Munroe and Others v. Maxie Cuffie and Others delivered on the 22nd January, 2016 5 See Section 73, The Constitution, Ch. 1:01 6 Representation of the People Act, Ch. 2:01 7 The Constitution, Ch. 1:01 Page 1 of 53 5. On the 10th September, 2015, the EBC issued the final vote count in respect of the general election8, declaring the People’s National Movement (PNM) the victorious party9. 6. Some eight (8) days later, the Petitioner, the losing candidate for the United National Congress (UNC) in the electoral district of St. Joseph, moved the Court under Section 52 of to the Constitution10 to have the election declared invalid. Almost simultaneously, leave was sought by five (5) other losing candidates to file Representation Petitions to have the election in their constituencies declared void. The main contention of these Petitioners was that the extension of the poll by one (1) hour constituted a breach of the election laws of Trinidad and Tobago, that each breach also constituted corrupt practices, for which the election should be invalid. 7. In the course of this judgment, the Court considered the constitutional imperatives of integrity and fairness in the process of Parliamentary elections, as well as the statutory and common law bases upon which Parliamentary elections may be declared invalid. 8. The Court paid special attention to the powers of the EBC and whether powers can be attributed to the EBC by virtue of Section 5(2)(h) of the Constitution11. 9. The Court explored the doctrine of substantial compliance in the context of Parliamentary elections and the weight that Courts have given to the expression of the will of the majority before an election is set aside. 8 See paragraph 28 of the Affidavit of Mrs. Fern Narcis-Scope filed on the 29th January, 2016 9 See paragraph 28 of the Affidavit of Mrs. Fern Narcis-Scope filed on the 29th January, 2016 10 The Constitution, Ch. 1:01 11 The Constitution, Ch. 1:01 Page 2 of 53 10. The Court also considered the meaning and effect of the ROPA12 which at Section 35(3)13, includes a saving provision for elections. Procedural History 11. On the 18th September, 2015, the Petitioner sought and obtained the Court’s leave to present a Representation Petition under Section 52 of the Representation of the People Act (ROPA)14. 12. The First and Second Respondents lodged an appeal against this grant of leave (“the Leave Appeal”). On the 30th November, 2016 the appeals were dismissed by a majority of two to one and the Petition was remitted to be heard by this Court. In the course of his ruling on appeal, Justice of Appeal Jamadar provided guidelines for the determination of the substantive matter. 13. On the 11th December, 2016 this Court gave directions specifying deadlines for filing of affidavits and of notices indicating evidential objections. Deadlines were specified sequentially, directing that affidavits be filed firstly, on behalf of the Petitioner, each of the Respondents and the Petitioner in Reply. Ultimately, directions were given for the filing of Notices indicating evidential objections, which were in fact heard on the 28th April, 2016. 14. In the interim, the Petitioner filed a Notice of Application15 on the 2nd March, 2016 pursuant to Section 109 of the ROPA16 seeking an order that the specified election documents be delivered to the Registrar of the Supreme Court and be produced by the EBC for the 12 Representation of the People Act, Ch. 2:01 13 See the full text of the Section of Schedule B 14 Representation of the People Act, Ch. 2:01 15 The Notice of Application filed on the 2nd March, 2016 and Application for production of documents. 16 Representation of the People Act, Ch. 2:01 Page 3 of 53 inspection of the Petitioner. The Court gave directions for the filing of Written Submissions in support of and in opposition to the Petitioner’s Application for production of documents. 15. On the 23rd May, 2016, the Court heard submissions on the Application for production of documents and recorded an undertaking on behalf of the EBC that it would refrain from destroying the election documents until the hearing and determination of the Petitions. 16. On the 23rd May, 2016, the Court also ruled on the Petitioner’s Notice of Application for production of documents and directed that the Petitioner be at liberty to inspect four (4) categories of election documents. 17. Pursuant to the Court’s Ruling, the Petitioner inspected the documents and on the 8th June, 2016, the Petitioner filed and served a Notice of Application seeking production of certified copies of two (2) sets of documents: Polling station diaries, and Roving Officers’ reports. 18. The latter application was initially heard on 10th June, 2016. Mr. Martineau, learned Senior Counsel for the EBC requested time to consider the Application. On the adjourned date, the 17th June, 2016, Mr. Martineau, S.C. agreed to produce certified copies of the documents but strenuously resisted the Petitioner’s Application to have the documents tendered into evidence. 19. The Court heard oral submissions and delivered an extempore ruling granting permission to the Petitioner to file an affidavit exhibiting the documents which were to be produced by the EBC. The Court also gave permission to the Respondents to file affidavits in opposition. The Respondents lodged an appeal against the dates set by the Court for the filing of affidavits in opposition. Page 4 of 53 20. On the 27th June, 2016, the Court of Appeal heard and ruled on two (2) appeals: the first was the Petitioner’s appeal against the Court’s ruling on evidential objections as well as the appeal referred to at the preceding paragraph. 21. The Court of Appeal allowed the appeal against the ruling of this Court as to evidential objections on the grounds of hearsay and evidence which had not been pleaded.